United States v. Vasquez

BAUER, Before MANION and TINDER, Judges. Circuit BAUER, Judge. Circuit Vasquez appeals Isaac his conviction for knowingly failing as a sex of- traveling fender after com- merce, in violation of Sex Offender (SOR- Registration and Notification Act 2250(a). NA), 18 U.S.C. We affirm.

I. BACKGROUND Vasquez pleaded October Isaac guilty Predatory Criminal As- Sexual sault, Victim Under the Age Circuit Court County, Cook Illinois was years’ imprisonment sentenced to six Department the Illinois of Corrections (IDOC). This conviction him to register as a sex offender under Illi- Registration nois Sex Offender Act. initially After registering under Illi- law, nois within Chicago moved but report failed change this of address as required under being Illinois law. After charged, Vasquez pleaded guilty to Failure to Report Change of Address was year imprisonment. sentenced to one Thereafter, signed a Vasquez notification form acknowledging that he had been ad- vised duty of his to register as a sex offender under the Illinois Sex Offender Act, Registration that he understood duty, and that his failure to would constitute a criminal offense under Illinois law. being

After on parole released on March 15, 2005, Vasquez disappeared from where (argued), Jennifer J. Clark Department placed was Illinois authorities and General, of Justice Office of the Solicitor never parole returned to the office or DC, Washington, for Plaintiff-Appellee. other Illinois law enforcement agency as (argued), Gabriel B. Plotkin Attorney, required by the parole. conditions Miller, Beem, IL, Shakman & Chicago, for On or about March Illinois issued Defendanb-Appellant. warrant his arrest. foreign 11, 2007, Vasquez present who “travels interstate or com- April

On merce”; July “knowingly fails to On in Illinois. California, County, Angeles update required by Los found in [Act]; by the custody taken into shall be fined under this title or where he was his imprisoned years, Marshals Service. After not more than 10 United States 2250(a). custody § on and parole release from IDOC both.” 18 U.S.C. Angeles, his

until time of arrest Los appeal, Vasquez not dispute On does 3, 2007, July failed Vasquez on California days more three elapsed than had Illinois, register as a sex offender he recently from the date had most California, any other state. address, him changed requiring his to re- Thereafter, Further, was indicted for Vasquez not register. Vasquez arguing failing statute; a sex of- knowingly as a lack notice of the After the district fender under SORNA. v. Dixon made clear that SORNA Vasquez’s motion to dismiss process law, court denied not does violate due even indictment, to a proceeded case personal there notice when is no stipulated Vasquez facts. requirements. bench trial enactment or its 551 F.3d (7th his sex re- stipulated prior Cir.2008), conviction rev’d on other Af- register under SORNA. quired States, him to grounds sub nom. Carr v. United — — Vasquez’s acquittal, motion for denying -, 2229, 2233, ter U.S. 130 S.Ct. - court convicted and sentenced Finally, district L.Ed.2d Vasquez prison twenty-seven him to a term he cannot contend that traveled inter- months, supervised release term of three a prior state commerce effec- SORNA’s —Carr, special a assessment. years, -, and $100 tive date. U.S. — Vasquez timely appealed. 2229, 2232, L.Ed.2d -. But Vasquez contends that his conviction II. DISCUSSION govern- should reversed because prеsented no evidence that he enacted SORNA in “knowingly” violated SORNA when requirement a imposes registration which addition, Vasquez failed to offenders, § a on sex U.S.C. challenges constitutionality of SORNA comply for failure to with penalty criminal argues violates the Commerce registration requirement, 18 U.S.C. impermissibly regulates Clause because 2250(a). A “sex offender” defined local, activity purely non-economic and be- a sex individual who is convicted of require any cause it does not nexus be- state or law. offense either federal tween defendant’s travel 16911(1). Pursuant to SOR- U.S.C. reg- failure commerce and defendant’s NA, shall register, sex offender “[a] We both the denial of a ister. review current, ju- keep registration in each judgment acquittal and the constitutiоn- risdiction where the offender resides.” challenges al under the Commerce Clause 16913(a). A must U.S.C. sex offender Moses, novo. United States v. de update busi- within three Cir.2008); residence, name, “change ness of a days Cir.2003). Klinzing, employment, student status.” 16913(c). A sex offender who Register “Knowingly” Failing to A. comply obligations does SORNA’s argues ... that SORNA re punishment: faces “Whoever criminal [Act]”; had proof specific that a defendant required quires under the knowledge “knowingly” legal registra- that he was violated requirement upon relocating. Griffey, Relying upon under SORNA. Flores-Fi tion — -, gueroa 589 F.3d at 1367. -, 173 L.Ed.2d recently We declined extend the (2009),Vasquez maintains that as a matter knowledge requirement to the element age ordinary grammar, word English 2423(a), prohibits in 18 U.S.C. “knowingly” applies every in a statute “knowingly transporting] an individual crime. subsequently listed element of the age years who has not attained the of 18 Flores-Figueroa, the Supreme Court commerce, foreign interstate or ... with that, in convict a held order to engage prosti- intent that the individual aggravated identity “knowingly of theft for Cox, tution” United States v. F.3d 577 transfer[ring], possess[ing], us[ing], (7th Cir.2009). despite Cox held that authority, without lawful a means of identi- grammatical arguments, the most the nat- person,” govern- fication another the 2423(a) reading ural the that ad- prove ment must that defendant knew that “knowingly” only verb modifies the verb the “means identification” he or she “transports” and not to does extend the transferred, unlawfully possessed, used Accordingly, victim’s minor status. Id. did, fact, belong person. to another age the is an while victim’s element the added). (emphasis S.Ct. at 1893 Accord- (i.e., government prove offense the must ingly, Vasquez that govern- asserts eighteen), the victim is under the defen- him, ment proof cannot convict absent that dant need not have knowledge of vic- required he knew that him to SORNA age. tim’s Cox noted a departure from Vasquez maintains that the Flores-Figueroa appropriate in inter- stipulated facts contain no such proof. 2423(a) preting require to not knowledge court previously This has not addressed Cox, age. of the victim’s at F.3d requires whether SORNA a defendant (citing Flores-Figueroa, 129 at 1895- have specific knowledge of his obli federal (Alito, J., concurring)). gation register. However, at four least Today Fourth, Fifth, joinwe Eighth, issue, of our sister circuits have faced this (and Circuits, and Eleventh our echo rea- and all have knowledge held that soning Cox), and hold that SORNA obligation federal under SORNA is not merely requires that a defendant have Gould, required. See States v. knowledge required by that was law he (4th Cir.2009); register govern- as a sex offender. The (5th Whaley, 577 F.3d Cir. that, need prove not in addition to 2009); Baccam, United States v. 562 F.3d being required law, under state (8th Cir.2009); 1199-1200 a registra- defendant must also know that Griffey, States v. 589 F.3d tion is a Cir.2009). mandated federal statute. Specifically, Eighth Circuit view, Flores-Figueroa this Court’s did rejected the argument defendant’s that he the long overrule line of that knowingly could not violate cases SORNA be the term “knowingly,” cause he was not defined used specific regis told his when statute, obligations tration a criminal “that under the law. Bac mean cam, 562 F.3d at 1199-1200. defendant realized what doing And the he/she Eleventh Circuit affirmed defendant’s and was aware of nature of his con- conviction, duct, holding through that SORNA did not and did not act ignorance, require specifically Jury know mistake accident.” See Fed.Crim. Inst, statute, violating he was the Seventh Circuit 4.06 Cox, interstate travel has no connection to To that 577 F.3d also to register. the failure end, can be convicted a defendant prove if can government SORNA power is Congress’ Commerce Clause as required knew he was I, § from Article 8 of the United derived the extent that SORNA’s offender. To sex Constitution, provides States from ‍​​​​‌‌​​​​​​‌​‌‌​‌‌​​​‌‌​​‌​​‌​‌​​​‌​‌‌‌​​‌​‌‌​‌‍state requirements differ registration regulate “[t]o to- requirements, we need not decide law Nations, foreign Commerce with in viola- whether a defendant would be day with the among several Const, if he complied tion of SORNA I, 8,§ Indian Tribes.” art. cl. obligations but not law registration Congressional power under the Com- obligations, when his federal itself, complete may merce Clause “is had not made aware of additional extent, been utmost and ac- exercised the federal obligations limitations, statute. no than knowledges other are in the constitution.” United prescribed Here, stipulated that he Schaffner, offender, a sex had Cir.2001) Ogden, (citing v. 22 U.S. Gibbons failing time to jail for previously faced Wheat.) (9 1, (1824)). 196, 6 L.Ed. 23 We signed a notification register, and had even only Congress ask whether could need required acknowledging that form support had a to rational basis Vasquez state law. register to under power of its commerce exercise and wheth- regis- to have known that failure would regulatory means chosen were rea- er the as a sex in violation ter offender sonably adapted permitted by to the end short, beyond law. we find Motel, Heart the Constitution. Atlanta Vasquez knowingly reasonable doubt 379 U.S. Inc. v. United register update registration, to failed 348, 13 L.Ed.2d 258 Never- S.Ct. 2250(a). in violation 18 U.S.C. theless, inevitably a court will not rubber stamp congressional all statutes as B. Commerce Clause province to still the of the courts deter- has its Congress mine whether exceeded Alternatively, Vasquez argues that powers. v. United States enumerated authority under the Congress exceeded (7th Cir.1997) Black, in enacting SORNA. Commerce Clause omitted). (internal citations First, that 42 he contends of ac provision which re There are three broad areas SORNA’s may regulate every rеgister tivity Congress offender re quires sex to (1) “the use of the gardless power: of whether the offender traveled its commerce (2) commerce”; lines, “the is unconstitutional be channels interstate across commerce, power to instrumentalities of interstate cause does have the com registration requirements persons on indi impose merce, though may intra even the threat come purely citizens convicted vidual (3) activities”; Second, only from intrastate state offenses. contends 2250(a), having a rela crimi “those activities substantial that 18 U.S.C. SORNA’s register, uncon to interstate commerce.” penalty failing nal for tion 549, 558-59, 115 Lopez, it a v. 514 U.S. the statute makes States stitutional because (1995) (inter 1624, 131 sex of L.Ed.2d federal offense for individual omitted). addition, nal citations Con who in interstate commerce fender travels ability make all also register, gress “[t]o even when knowingly fail necessary constitutionality veals au- prop- Laws which shall be the statute accomplishment er” of its Com- thorized. Const, I, power. art. merce Clause 552 F.3d at 715. 8,§ cl. 18. reason to with our disagree We find no previously this Court While has not ad- sister circuits. Vasquez’s arguments, dressed our sister Here, statutory aim of SORNA is circuits have held registration provi- prevent a from cir- convicted sex offender penalty register sions and the for failure to cumventing registration by leaving the Congress’ do not exceed under the state in he is registered. Section Commerce Clause. United States v. Guz- only knowing criminalizes a failure to man, (2d Cir.2010); 591 F.3d Wha- register when sex offender is either 261; lеy, 577 F.3d at required under federal law or Howell, Cir.2009); 552 F.3d foreign “travels in interstate or com- Ambert, Thus, merce.” a sequential reading of the (11th Cir.2009). Specifically, Ambert statute “helps assure a nexus between a concluded because makes it a defendant’s interstate travel and his failure federal crime to fail as Carr, a sex offender.” where offender foreign “travels interstate or com-

merce,” or was convicted of federal sex inherently Interstate travel involves use offense, use of the channels and instru- of channels of interstate commerce and is mentalities interstate commerce is nec- properly subject to congressional regula- essarily part of the commission of the tar- tion under the Commerce Clause. More- geted оffense. 561 F.3d at 1211. Ambert over, Lopez explicitly acknowledges Con- reasoned that “channels” are the interstate gress’ regulate power persons traveling to transportation through routes which per- 558, in interstate commerce. U.S. at goods sons and move and that “instrumen- 115 S.Ct. Accordingly, 1624. section 2250 people talities” are the and them- permissible congressional is a exercise of moving selves in commerce. 561 F.3d at under Commerce Clause be- Further, 1210-11. in concluding that cause the use channels instru- § an appropriate aid to the ac- mentalities of interstate commerce nec- complishment of tracking essarily a part the commission of the movement, Howell stated: targeted Vasquez, offense. who had failed A discussion analyzes narrow which register Illinois, to sex as a offender in was § under categories the three undeniably “person a ... in interstate Lopez easts doubt on the constitutionali- commerce” he when moved from Illinois to ty face, §of 16913 ... [o]n because California, and traveled to via California § jurisdictional 16913 does not the “channels of interstate commerce.” “hook” fit under prongs to the first two 2250(a)’s require Section failure to a con- of Lopez, and there is little evidence in jurisdictional nection between element

this to record show intrastate sex of- of travel failing and the criminal act of to fender substantially affects fatal, is not as the However, Court interstate commerce.... jurisdictional analysis determined the element of under broаd au- “in thority affecting granted commerce” was satisfied through both proof possessed previ- the commerce clause and the en- firearm abling necessary proper ously clause at re- traveled some time in interstate States, I. Scarborough v. United commerce. 1963, 97 S.Ct. U.S. argued, After case was (1977). In doing, L.Ed.2d 582 so States, v. handed down Carr United Court assertion rejected the defendant’s — — U.S. -, 130 S.Ct. L.Ed.2d travel of the firearm the interstate - (2010). it, the Court overturned defen- contemporaneous with the must interpretation §of 2250 in previous our 568-69, 97 it. Id. possession of dant’s Dixon, Scarborough, “[t]he 1963. Similar (7th Cir.2008), nom. rev. sub Carr a defen- bring of travel” is sufficient act — -, within failure to subsequent dant’s — - In that L.Ed.2d Carr, at regulate. Congress’ power case, in Ala the defendant was convicted 2005, he rape. moved tо bama un- a rational basis existed

We conclude as a Indiana but didn’t sex offend Congress to the Commerce Clause for er, stayed der and he under radar until § 2250. enact fight. when was arrested a bar arrest, authorities After his learned he logical way help 16913 is wasn’t registered was a sex offender and more ef- government will ensure SORNA, in Indiana track fectively be sex offenders able in 2006. enacted they To do cross lines. when regulates solely intra- extent charged convicted of He chosen activity, regulatory means violating appeal challenged On adapted” attain- “reasonably to the are grounds, conviction on various includ- his end the com- of a legitimate using pre-SORNA the fact that his ing power. merce post him violated travel convict the ex text, Looking clause. to the statute’s

facto rejected argument and read III. CONCLUSION ‍​​​​‌‌​​​​​​‌​‌‌​‌‌​​​‌‌​​‌​​‌​‌​​​‌​‌‌‌​​‌​‌‌​‌‍to a travel apply regardless defendant’s above, the stated we For reasons Affirm it took “the statute does place: of when ruling of district court. the the require that the defendant’s travel not Act, any the more than it re-

postdate that the of- MANION, Judge, dissenting. quires conviction the sex Circuit registration re- triggers the fense the court’s reading opinion the at postdate it.” Id. 582. quirement case Supreme recent Court Carr v. United Supreme disagreed. It noted be there are The Court this fact cannot lost: sequentially, § here. be read seemingly statutes at issue has to two duty meaning § it in the has have a interpreted is as we There SORNA; Dixon, has to the court then and as travel; it, has “culmi- there is and his violation interpret and then continues to post-SORNA regis- in a failure to Supreme interpreted § as Court nate] the Carr, Ultimately, it being said, supra have two at 2233. in Carr. That I ter.” it argument post the ex disagreements with the court’s avoided principal facto apply pre-en- § it too 2250 doesn’t gives is that Carr held opinion. The first travel. at But it didn’t a the is that its actment Id. reading; limited second gave there. also some stop § 2250 the stat- The Court interpretation of renders § commentary on 2250 in constitutionally defective. additional ute requirements by traveling form of “considered dicta.” in interstate (7th Cir.1998). Bloom, Id. commerce.” at clear, To no circuit applying be court In Dixon we noted that evil at “[t]he § prosecution 2250 has aimed is [§ 2250] is that convicted prove purpose defendant’s inter- registered might sex offenders one probably state travel. This is because as state, move to another fail to written, any is the statute does not have there, public unprotect- and thus leave the language to that But effect. Dixon, ed.” at 582. We also Court and the eye-to-eye dissent saw analogized felon-in-posses- 2250 to the “I point: agree with the Court statute, noting sion it doesn’t matter when 2250(a) good there a argument is lines, passed the firearm the fire- apply case, a should not read to to such harm; part arm’s travel is not it is where there is if little connection be- jurisdictional a simply hook. Id. prior tween the offender’s interstate move- subsequent regis- ment and his failure Again, Court viewed (Alito, J., dissenting). ter.” at Id. It differently: analоgy “the proper is is clear that as far the Supreme not, as the Seventh Circuit suggested, be- concerned, is 2250 the defendant’s tween the travel a sex offender and the just travel not jurisdictional hook but firearm; movement of a it is between the part Congress regulat- of the behavior sex offender who ‘travels’ convict- ” ing. court, as an inferior we have to Carr, ‘possesses.’ supra ed felon who by it. abide 2240. It also disagreed position with our about the defendant’s travel: the travel is mind, With that in I points have two just jurisdictional not “a predicate for disagreement with application the court’s also, Car)". but it is like posses- the act of First, even if Carr limited to its sion, very Congress conduct at which holding, basic the facts we here do took aim.” Id. In that way, is not Second, sаtisfy give statute. if we traveled; enough that a defendant has dicta,” due deference to Cards “considered specific has to travel purpose be- satisfy facts have here do not cause “subjected such of- nothing statute because there is in the liability fenders federal criminal why record about he traveled. when, enactment, they after SORNA’s use A.

the channels of interstate commerce in evading State’s reach.” Id. at 2239. Of and I agree court that under Carr course, if liability only criminal attaches § sequentially. 2250 has to be read We when the travel for such purpose, is a then just on I disagree what means. think showing of purpose and intent that the sequential Carr’s requirement means that government must make pivotal is to the has have a to duty regis- defendant to prosecution. The Court rested SORNA; travel; ter under he then to has reading § 2250 on both SORNA’s and his violation to “culminat[e] has a purpose and its “Taking structure: ac- post-SORNA Carr, register.” failure to structure, count of overall SORNA’s we supra sequential reading at Cards is have little Congress reason to doubt that just not a checklist for courts. It has a exactly intended 2250 to do it says: what purpose: it “a assures that there is nexus subject to to prosecution federal sex of- between a defendant’s interstate travel who registration fenders elude SORNA’s failure to register his as a sex offend- statement, Thus, light of the fact that our person a cant “[o]nce at er.” Id. applied analy- have the same sister circuits subject to SORNA’s becomes as the court and found that 2250 is a ... can be con- sis person requirements, legitimate § 2250 he travels exercise Commerce victed under thereafter if backdrop against at 2235 But of the register.” Id. Clause. and then fails added). that have traditional boundaries marked (emphasis Congress’s power the Commerce From here. happened That not what is interpretation Lopez, it and our Clause record, only duty Vasquez’s the stipulated legitimate is a clear that not is in Illi- a sex arose register as offender congressional power. And exercise nois, He which he failed to do. didn’t it, uphold effort to the court endorses a duty California —under expansion congressional pow- significant facts, we don’t know how sparse stipulated er. changed that he long was there or had any status would his rеsidence plain language §of without register in California. compel him to dicta, applying Carr’s considered estab- 16913(c). So, his trav- requires only lishes the statute that a regis- el did not culminate in his failure defendant have traveled interstate some ter, way to his any nor was it connected to its limiting time. Carr narrow Thus, part it not failure to for the holding, merely time travel addressing, Congress of the harm after to be the statute was enacted. Un- jurisdictional making hook but a mere application, der either the defendant’s this a crime. federal is not connected to him evading travel SORNA, duty and it is

B. regulating. not what is disagree I the court’s treat- also person While the distinction between above, From Carr. the discussion registering to evade and a who travels it should be clear that who travels and fails to is person pur- that some requiring views semantically slight, constitutionally avoid, pose registering evade or elude significance significant. appreciate To travel; it is attach to defendant’s of this distinction and understand the er- enough that the travels across analy- in the Clause ror court’s Commerce to run an errand or visit state lines sis, necessary the traditional sketch nothing in the rec- friend. Here there is power. Congress’s limits of commerce traveled; why Vasquez all ord about years, courts have past For the fifteen Thus, know that he did. without understanding much of their based concerning why Vasquez traveled proof categories three commerce California, be over- his conviction should Lopez, articulated in turned. 549, 558-59, (1995): L.Ed.2d 626

II First, may the use of principal Congress regulate dis- my This leads second the the channels of interstate commerce. agreement interpreting with court: See, 114, e.g., Darby, 312 at 61 S.Ct. way and U.S. statute the we did Dixon Motel, 451; here, supra, at § 2250 Atlanta way without Heart the court does of (“ 256, travel, authority of ‘[T]he it is un- 85 S.Ct. 348 regulating the defendant’s Granted, of keep channels inter- signifi- that is a constitutional. 334 to keep commerce free from immoral and the channels of com- interstate been

injurious frequently injurious uses has sus- merce “free from immoral or tained, longer ques- 256, open is no (quot- uses.” 379 U.S. at 85 S.Ct. 348 ” (quoting Caminetti, v. United 491, tion.’ Caminetti 242 ing U.S. at 37 S.Ct. States, 470, 491, 192, 242 192). U.S. 37 S.Ct. Caminetti, upheld the Court (1917))). Second, 61 L.Ed. 442 Con- Act, the Mann which “seeks to reach and gress empowered regulate pro- punish the movement in interstate cоm- tect the instrumentalities of interstate girls merce of women and with view to commerce, persons or inter- accomplishment pur- unlawful commerce, though even the threat 491, poses 242 prohibited.” U.S. at 37 may only from come intrastate activities. added). (emphasis S.Ct. 192 These cites Cases, See, e.g., Shreveport Rate 234 Congress’s power illustrate traditional 342, 833, U.S. 34 L.Ed. S.Ct. 58 1341 keep ‍​​​​‌‌​​​​​​‌​‌‌​‌‌​​​‌‌​​‌​​‌​‌​​​‌​‌‌‌​​‌​‌‌​‌‍the channels of interstate commerce (1914); R. Southern Co. effect, free from misuse. when Con- States, 20, 2, 222 U.S. 32 S.Ct. 56 L.Ed. gress this, “excluding] does it is from (1911) 72 (upholding amendments to commerce articles whose use in the states Safety Appliance Act as applied vehi- they may for which are destined it con- commerce); cles used intrastate Per- injurious health, ceive to be to the public (“[F]or ez, 150, supra, S.Ct. 1357 Darby, morals or welfare.” 312 U.S. at example, destruction of aircraft 114, 61 S.Ct. 451. (18 32), ... U.S.C. thefts from with understanding Consistent (18 659)”). shipments interstate Congress’s power, we have that un- noted interpreted category We have each Lopez category, der the first can pro- reference the citations used. United shipments goods, scribe of stolen kidnaped Wilson, 675, States v. F.3d 686-87 persons, prostitutes traveling from Cir.1995). Wilson, the channels. 73 F.3d at 680 n. 5. upheld And we have a child pornography

A. “Congress statute because set out to ha[d] In support Lopez category of the first prohibit the interstate movement of a com- “Congress may regulate the use of the modity through the channels of interstate commerce,” Lopez channels Schaffner, commerce.” United States v. Darby, cites three cases: 675, Cir.2001) (citing 680-81 100, 113-15, 451, S.Ct. 559, Lopez, 1624); 514 U.S. at 115 S.Ct. (1941); Motеl, L.Ed. 609 Heart Atlanta see v. Kenney, also United States States, 241, 256, Inc. v. United 379 U.S. (7th Cir.1996). 884, regulations These 348, (1964); S.Ct. 13 L.Ed.2d 258 Cami focus on the movement state lines across States, netti v. United 242 U.S. with an illicit purpose. Hoke v. United (1917). 37 S.Ct. 61 L.Ed. 442 227 U.S. pertinent discussion each cited case fo is, L.Ed. 523 That the crime is Congress’s ability regulate cuses on complete once offending person misuse of the channels of interstate com good Caminetti, has moved interstate. Darby, merce. to ban 242 U.S. at S.Ct. goods minimum produced without labor not, traveling It is interprets Lopez, standards on the the court channels of interstate matter having commerce. 312 U.S. at 113- traveled Atlanta, In Heart innocent purpose some and then later portion cited Congress’s power committing concerned the crime. See Mortensen v.

335 369, States, 374, inter- 64 S.Ct. sional over channels of U.S. 322 (“To (1944) 1037, constitute L.Ed. 1331 88 state commerce.1 Act, it that is essential a violation have for transportation interstate B. effecting or be the means object or activities.”). A

facilitating proscribed opinion goes beyond Lopez the first lines travel across state person’s mere category upholds and also 2250 under authority to later give Congress not does noting category, the second all of his future conduct—or regulate undeniably person ‘a ... in interstate “was case, reg- previous make his failure this moved commerce’ when he from Illinois The Tenth in Illinois a federal crime. ister California, and traveled via California point made this same Circuit ” the ‘channels of interstate commerce.’ Patton, where observed Op. category, at 330. “Con- Under Lopez “category first is confined empowered regulate gress pro- regulate transpor- interstate statutes tect the instrumentalities of interstate itself, ship- manufacture tation not before commerce, persons -or in inter- things shipment.” or use after commerce, though even the threat Cir.2006) J.). (McConnell, 615, 621 may only come activities.” intrastate properly In contrast to the statutes that Lopez, U.S. at 1624. S.Ct. person’s travel across the chan- regulate interprets The court to mean category commerce, § 2250 nels of interstate person that because a travels across state travel separates the court the defendant’s lines, he is person “a interstate com- failing to from the crime of can him regulate merce” problemat- constitutionally that renders it thereafter. may tacitly ic. The when it noted recognized this Carr But that expansive interpre- literal and Congress “subjected such Lopez category tation of the second only liability criminal offenders federal contrary precedent. to our circuit’s There when, enactment, they use after SORNA’s parts category: are two to that “instru- the channels interstate commerce mentalities of interstate commerce” Carr, supra evading State’s reach.” commerce, “persons in interstate is, focus it should 2238. Under Carr the though may threat come even be, on the sex offender’s misuse of part from intrastate activities.” The first using channels interstate сommerce: It selfexplanatory.2 part is the second registration. And unless them evade things” did, concerning “persons pro- that is interpret the statute as Carr congres- for permissible 2250 is use of blematic courts. effect, Houston, opinion in E. & W. Court’s commerce. verifies defect I’ve identified in Carr Ry. (Shreveport Tex. v. United States Rate by incorporating § 2250 this additional re- Cases), L.Ed. 234 U.S. 34 S.Ct. placing quirement the statute and into (1914); Ry. v. United Southern Co. beyond its statute’s focus text and onto L.Ed. 72 inter- defendant’s travel on the channels of they Specifically, Con- concerned state commerce. ability gress's rates to set and standards Co., Shreveport Rate 234 U.S. at railroads. support Lopez category, of the second 351-53, 833; Ry. cases, which, Perez, see also Southern cited cited three one of Co., S.Ct. 2. U.S. at first two concerned two statutes. The cases railroads, which are actual instrumentalities understanding, we have ex- of rather arcane area With that the midst this pressed videotape that law, it to remember reservation cas- important is settes that have moved across state lines a radical en- that doesn’t stand for Lopez “things are interstate commerce.” largement Congress’s power under the Angle, categories, first two but rather enforce- (7th Cir.2000). n. 12 also avoided We have limits under the third —the activi- using category uphold legis- the second substantially affect interstate ties that interfering lation that criminalized with an categories three commerce. facility simply preg- abortion because thе convenient interpreted should as a rhe- In doing nant women have traveled there. summarizing torical formulation for Con- so, we that Ac- “[hjolding noted the ‍​​​​‌‌​​​​​​‌​‌‌​‌‌​​​‌‌​​‌​​‌​‌​​​‌​‌‌‌​​‌​‌‌​‌‍gress’s power over commerce. traditional cess Act of an qualifies regulation Rybar, States v. 103 F.3d instrumentality of interstate commerce Cir.1996) (3d J., (Alito, dissenting). 286-89 one reading based on a literal sentence defining previously, that clause in Lopez ... is without fur- unnecessary language noted that the “inclusion of the guidance ther from the Court.” ‘persons things’ likely based on Wilson, 687 n. 12. This makes Wilson, precedent happenstance.” —not category sense the Lopez because second key 687. F.3d at And the under- “things actually being involves moved standing language commerce, people interstate not all States; Cоurt’s citation to Perez v. United things that have ever across moved pertinent language in Perez is where Patton, Thus, lines.” 451 F.3d at 622. notes: “The commerce clause wholly precedent inconsistent our protection .... reaches instrumen- uphold constitutionality 2250 as commerce, talities interstate as for ex- “person ... regulating sex-offenders as a (18 ample, destruction of an aircraft in interstate commerce.” 32), persons things U.S.C. com-

merce, as, example, thefts inter- C. (18 659).” shipments 146, 150, S.Ct. 28 L.Ed.2d Unlike the other circuits address this (1971). Lopez cites to these same question, the court also Scarborough cites statutes. 514 U.S. at 115 S.Ct. 1624 v. United 431 U.S. Perez,

(citing U.S. at 91 S.Ct. 1357 (1977) 52 L.Ed.2d 582 and the 32, 659)). §§ (citing Essentially, 18 U.S.C. reasoning “minimal as a nexus” basis to what Lopez power by did was define uphold § Commerce looking explication to the given Perеz. Notably, Clause.3 none of the other cir- phrase this way, “per- Understood directly cuits Scarborough relied on things sons or in interstate commerce” uphold and its minimal nexus test clearly refers and must be defined applies persons 2250 as it who have pass protect so, laws that can In doing traveled interstate. the court persons power Congress instrumen- recognizing never Wilson, had, moving. talities are 73 F.3d at so without doing giving deference reasoning to the in Cair. opinion activity suggest substantially does not affects Lopez upheld category, can be under the third commerce. That is not at issue here. play comes into with economic

337 engage our decision in it. Scarborough legal the fiction limited to to created distinction, in Consistent with this the fel gun crossed state lines it is that once it on-in-possession gun context is the affecting” “in or commerce and forever lines; enough has crossed state is not possess- prohibit can felons from Congress that the felon has crossed state lines and as “a minimal them—this is described ing gun subsequently possesses that has re 575, 97 S.Ct. 1963. 431 U.S. at nexus.” mained States v. intrastate. United of a “minimal logic have also used the We (2d Travisano, 724 F.2d 347-48 Cir. uphold to the or “limited nexus” nexus” 1983). constitutionality ear-jacking of the statute. Third, Supreme in the Court Carr v. 226 F.3d Taylor, United Cir.2000). Scarborough looked at and the minimal Although this test seems nexus rubric and noted that 2250 is dis- things, applied work when to such to tinguishable: “Understanding the act of cars, problems are four and there guns Congress travel as aspect harm extending minimal or nex- the limited sought distinguish serves to punish persons. rationale us felon-in-possession statute First, Scarborough good is still while analogized.” to which Circuit the Seventh goes in reasoning as far as felon-in- law Carr, Indeed, at 2239. supra Court cases, implicitly it has been possession analogizing went to note that this to in the criticized Court inappropriate: Scarborough is “In this in arson context Jones v. Unit- commercial case, not, analogy proper as the 848, 857, ed suggested, Seventh Circuit between the (2000). 1904, 146 L.Ed.2d We travel of and a sex offender the movement and recognized criticism refused firearm; of a it is between the sex offender test to materials. extend minimal nexus who ‘travels’ and the convicted felon who ” Craft, States v. ‘possesses.’ Id. Cir.2007). And other courts and Fourth, expanding Scarborough will prоblems have noted the inherent scholars limits between what local obliterate the Scarborough’s reasoning extending in and striking what is national. down it to other circumstances. United States in Against Violence Women Act (3d Bishop, 66 593-600 & n. 13 F.3d Morrison, States v. Cir.1995) (Becker, J., concurring part in impact” if “aggregated observed that dissenting in see also Dean A. part); category the third Lopez rationale under Felons, Guns, Strang, and the Limits of Congress were it would adopted, allow Power, J. Marshall L.Rev. 385 Federal “regulate type murder or other (2006); Chesney, including violence” and even reach issues (6th Cir.1996) (Batchelder, J., 577-82 “family law and other of traditional areas concurring). regulation.” 529 U.S. 146 L.Ed.2d 658 Second, While logical there is a distinction be- Congress regulate could not those areas guns and that can’t persons tween be lost Morrison, under its broadest here. applying Scarborough The cases By could the court’s rationale here. endorsing the “minimal nexus” test con- applying person’s the minimal nexus to a in- cerned were —commodities travel, could take over makeup cluded the actual of commerce. crimes. ability punish states’ domestic we are in- persons But are different: commercial; instance, herently bought we cannot be For (interstate order), sold; protective participation and our commerce violation longer prove would no have to the defendant had an government enough It is not prove elevated intent. travel traveled negligently through ignorance fail pro- with the intent to violatе a commerce only have tective order. It would to show that had at some time trav- the defendant position To address court’s on this lines, regardless eled of his across point, apart interpreting statute purpose, that at some time later he and specific-intent Carr this is a crime. The If protective

violated a order. this were Cox, court looks to United States true, effectively Congress could take over Cir.2009), and its rea- local, monitoring and control domes- soning in support interpreting 2250 as crime, by tic element making an of the a general-intent crime. In the statute Cox person crime traveled that has inter- proscribed at issue al- conduct that was That, however, state at time. some stands ready transporting unlawful: someone сomplete contradiction Morrison. prostitute. across state lines to become a aptly As the noted: “The person But it added the element that punishment of regulation and intrastate vi- be under We held that under the olence is not at the that directed instru- government statute the doesn’t have to mentalities, channels, goods involved in prove that the defendant knew he was always interstate commerce has been the minor, sense, transporting a makes province of the States.” 529 U.S. 618- given liability normally the strict that at- (citation omitted). taches to acts sexual with minors.

Thus, I believe that consistent with a But the statute at issue here does not government powers and in light limited conduct; proscribe inherently unlawful precedent Court’s rather, requires it the defendant must area, Scarborough’s we should not extend register. affirmative, He ‍​​​​‌‌​​​​​​‌​‌‌​‌‌​​​‌‌​​‌​​‌​‌​​​‌​‌‌‌​​‌​‌‌​‌‍has an adminis- beyond “minimal nexus” firearms to reach duty trative perform he must —one persons in an effort Thus, to find this stat- be imprisoned. it is reasonable that ute comes the Commerce Clause. he would duty know about the before he is held Nothing accountable.

D. suggests intended to hold someone responsible knowingly failing applied §When 2250 is way it something to do without here, evidence that court Dixon knew what supposed do. emphasizes the apply need to Carr’s con- sidered require dicta the statute and a Moreover, position the court’s that we showing that the defendant’s travel was knowledge can transfer between state- evade, elude, with an illicit intent imposed duty and a duty fеderal is difficult registering. avoid The alternative is an to concepts reconcile with basic unconstitutional statute. justice precedent. and our See United Pulungan, States v.

III. Cir.2009). Nothing in the statute defines my This point disagree- leads final obligation with reference to the specific-intent ment: this is a crime. That obligation. They Illinois are distinct. And is true applying the statute either as Vasquez’s there is no to think reason did in Dixon or as the Supreme duty Court did legal known law Illinois should in Ccmt. If we reasoning follow Carr’s transfer his federal obligation. short, purpose just the travel vital to because knew about naturally govern- statute that forces the duty uphold we cannot he was we assume because his conviction duty to of his federal

aware

IV. sum, here: are two statutes there as we have is written and

§ 2250 as it as the Su- pre-Carr,

interpreted it in Carr. interpreted

preme Court written, the statute as it is

Taking not re- because it does unconstitutional intent to travel with the

quire under SORNA.

avoid evade reasoning Supreme Court’s

Under

Carr, however, muster passes the statute regulates the

constitutionally because it travel, attaching criminal

defendant’s who travel inter-

liability to offenders sex applying registration.

state to evade Carr, would have to reasoning in because Vasquez’s conviction

overturn traveled. I why proof

there is no grammatical both the believe that

also context counsel of 2250 and its

structure crime. specific-intent this as a

reading reasons, dis- respectfully I must

For these

sent. LLC; CRAFT, Santa’s BEST

SANTA’S Manufacturing

Best; and H.S. Craft

Co., Plaintiffs-Appellants/Cross-Ap

pellees, IN FIRE AND MARINE

ST. PAUL COMPANY, Defendant-

SURANCE

Appellee/Cross-Appellant. 08-3572, 08-3773.

Nos. Appeals, Court of Circuit.

Seventh

Argued Nov. July

Decided

Case Details

Case Name: United States v. Vasquez

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 1, 2010

Citation: 611 F.3d 325

Docket Number: 09-2411

Court Abbreviation: 7th Cir.